By Kanaiza Akibaya and Ibrahim Alubala
The enactment of the Marriage Act on May 20 last year heralded a new epoch in the management of marital relations in Kenya. Granted, this was a culmination of a near-elusive search for a legislative framework that would bring all the marriage law systems under the rubric of a single consistent and coherent legislation.
It is critical to note that the search of this legislation had dodged the country for close to fifty years – the first attempt was made in 1967 when the new government established a commission to make recommendations for a new law that would provide for a comprehensive, and so far as practicable, uniform law of marriage and divorce applicable to all persons in Kenya, which was to replace the existing law comprising of unwritten customary law, Islamic law, Hindu law and the relevant Acts of Parliament. Broadly speaking, the commission was expected to prepare a draft of the new law that would “pay particular attention on the status of women in relation to marriage and divorce in a free democratic society”. Unknown to everyone, this was just the beginning of a long and tumultuous journey that would end in 2014 with the enactment of the Marriage Act, No. 14 of 2014.
The preamble sets the tone of the legislation by noting that its primary purpose is to amend and consolidate the various laws relating to marriage and divorce. With this in mind, the new legislation has effectively repealed legislations that made provision for the different marriage law regimes, namely Hindu marriages, regulated under the Hindu Marriage and Divorce Act, Islamic marriages, under the Islamic Marriage and Divorce Act, and Christian marriages for Africans, under the African Christian Marriage and Divorce Act, effectively bringing all the different marriage systems under the same legislation. The Act is divided into thirteen parts. Parts One and Two deal with Preliminaries and General Provisions. The former basically defines the terminologies used in the Act, while the latter provides for fundamental issues regarding marriages, including the meaning of marriage, minimum age requirement, as well as witnesses to a marriage. Parts Three, Four, Five, Six and Seven have been dedicated to the different types of marriages that parties can contract under the Act – Christian, Civil, Customary, Hindu and Islamic. Parts Eight and Nine address the institutional framework under the legislation by establishing the office of Registrar and marriage officers. The registration of Marriages is covered by Part Nine. Matrimonial Disputes and Proceedings, Rights of Action and Maintenance of Spouses are addressed in Parts Ten to Twelve. Part Thirteen creates various offences and penalties while Part Fourteen is on miscellaneous provisions which, among other things, repeal seven pieces of legislation and makes transitional provisions. This paper will be published in two parts, with the first addressing itself to provisions running from Parts One to Seven, and the final covering Parts Eight to Thirteen.
The new law echoes provisions of Article 45 of the Constitution, which provides that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. Section 3 (1) of the Marriage Act states that “a marriage is a voluntary union of a man and a woman, whether in a monogamous or polygamous union, and registered in accordance with this Act”. Section 4 further provides that a person shall not marry unless that person has attained the age of eighteen years.
A reading of the new law reveals three essential aspects that have to exist for parties to engage in marriage. First the parties must be over the age of eighteen years; this is a departure from the repealed legislations which permitted marriage of children, provided that parental consent was obtained. In other instances, determination of the appropriate age of marriage was to be decided on a case-by-case scenario. An example is Rule 4 of the Marriage and Bride Price Rules of Tanganyika, 1946, which made it incumbent on the customary guardian of the prospective bride to produce her before the traditional ruler (mwami) in order for the latter to be satisfied that she is of marriageable age. Secondly, the Act has reiterated the position that marriage can only be between a man and woman, leaving same sex unions out of the scope of the legislation. Finally, the legislation has emphasised that marriage can only be out of free consent; this rules out some cultural practices where parties would be forced into unions that they had not freely consented to. Prior to this Act, the various legislations that made provisions on marriage did not have an express provision guaranteeing equality between spouses. The Act has mechanically lifted the provisions of Article 45(3) of the Constitution by reiterating that “…parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”.
The Act envisages five regimes of marriages that can be registered – Christian, civil, customary, Hindu and Islamic. Out of the five regimes, parties conducting Christian, Hindu or Civil marriages are irrefutably presumed to have contracted monogamous unions. On the other hand, marriages celebrated under Islamic or Customary law are potentially polygamous. The express endorsement of polygamous unions by the Act goes against the recommendations by the Human Rights Committee which, while considering Kenya’ s State report on the International Covenant on Civil and Political Rights, called upon Kenya to consider prohibiting polygamous marriages because they undermine the nondiscrimination provision of the Covenant.
The Act, however, provides for the conversion of a potentially polygamous union into a monogamous marriage if both spouses voluntarily agree. For the conversion to be successful, the husband must only have one wife at the time, the declaration to convert must be witnessed by a marriage officer, after which the parties to the converted union will be issued with a new certificate. It would be interesting to integrate the position the Judiciary would take in the event of a party to a marriage changing their religion, and what this change would have to the status of marriage.
In Kristina d/o Hamisi v. Omari Ntalala, the parties, who professed Christianity, underwent a monogamous marriage under Tanganyika law. Later on, the husband became a Muslim and, in fact, purported to marry another woman under Islamic law. The Court was of the view that the husband was incapable, despite of his change of religion, of entering into a second marriage during the subsistence of the first, though the position might have been different if his first wife had also become a Muslim.
Individuals who have blood relations are prohibited from contracting a marriage. In this regard, aunts, cousins, nephews, uncles, parents, sisters, brothers, grandparents, adopted children cannot marry each other. On the same breath, marriages prohibited by any customary law cannot stand. The legislation expressly creates an exemption to persons professing Islam, granting them the liberty to marry their cousins; this is a departure from the approach taken by the Sexual Offences Act, which expressly excludes cousins from the ambit of incest.
Certain unions are characterised as void marriages; the net effect is that they are ineffectual and have no legal effect. These include unions involving underage, parties within prohibited marriage relationships, those in subsisting marriages, where a court has made an order prohibiting such unions, where consent was not freely obtained, where either party was absent from the ceremony, where parties knowingly and willing fully permitted an unqualified person to celebrate the union, where there was a mistake on the identity of the other party, and where parties have contracted the marriage for fraudulent purposes.
There is a category of unions that have legal effect when made but may be annulled, nullified or invalidated. These are categorized as “voidable marriages”, and include cases where either party was and has remained incapable of consummating, recurrent attacks of insanity, failure to give notice of intention to marry (where such notice is required) where a notice of objection has not been withdrawn, where an unlicensed person officiated, and failure to register the marriage (where such registration is required).
For Christians wishing to contract Christian marriages, the celebrations will be conducted by a marriage officer, who is a licensed minister appointed by the Registrar. Any person who is aware of any impediment to an intended marriage is at liberty to give a written notice of objection to the person in charge of the public place of worship where the marriage notice has been posted. The notice has to include the name of the objector, relationship with either party, and the reasons for objection. The legislation empowers the person in charge of the place of worship to hear the objection immediately; if the circumstances of the objection require further hearing, the marriage ceremony can be postponed until the objection is determined in accordance with the regulations of the church. Upon hearing of the objection, a seven-day time line for the determination is given. The person making the determination has another seven days to report to the parties and the Registrar on the process used to dispose the objection. Any dissatisfied parties have a right to appeal to court within fourteen days. The Act allows the objector(s) to withdraw the objection any time in writing.
A civil marriage is celebrated by the Registrar at a place determined by him. Individuals intending to contract a civil marriage must give a notice of intention to marry, of between twenty one days and three months. The notice has to include the name, age and residence of intended parties, names of their parents and their respective residences, a declaration that they are not within prohibited relationship, the date and venue of the celebration and their marital status. The Registrar is expected to publish notice of intention to marry at the proposed venue. Under this regime of marriage, individuals are also at liberty to object to the proposed marriage. Once the Registrar receives the objection, he is expected to hear and determine it within seven days, and any aggrieved party reserves the right to appeal to court within seven days.
The Act creates a criminal offence for any objection that will be deemed to be malicious, frivolous or fraudulent. Such objectors risk a fine of one million shillings, five years in jail or both. Parties to a civil marriage may agree to live apart for one year, provided that such an agreement is filed in court. However, a court can vary or set aside the agreement where circumstances have changed since the making of the agreement. Any of the parties is at liberty to apply to the court to determine the status after the expiry of the one year period.
Customary marriages have been expressly recognised by the Marriage Act. It is noteworthy that two distinct features of African Customary marriages, namely polygamy and bride price, have, despite being subjected to serious scrutiny, survived and, in fact, received legal backing with the new legislation. The bold decision by the legislation is a welcome one as it upholds the customary marriages that had been declared as “mere wife purchase” by Hamilton CJ in the (in)famous Rex V Amkeyo case decided in 1917. The judge had noted, perhaps with a tinge of contempt, that in his opinion, “The use of the word ‘marriage’ to describe the relationship entered into an African native with a woman of his tribe according to tribal custom is a misnomer which has led in the past to a considerable confusion of ideas…The elements of a so-called marriage by native custom differ so materially from the ordinary accepted idea of what constitutes a civilized form of marriage that it is difficult to compare the two.”
The law provides that marriage has to be in tandem with the customs of one or both parties to the intended marriage; the law requires at least payment of a token of dowry as sufficient proof of the marriage. Where this happens, the parties have a three-month window to notify the Registrar of such marriage. The written notification should contain at least five essential averments, including the specific customary law applied, a declaration that all the customary requirements were met, signatures of the parties contracting the marriage and their witnesses, an averment that the parties are adults and are not within the prohibited marriage relationship, and finally, that there was no coercion and that the parties freely consented to the marriage.
The debate on payment of dowry and whether or not it ought to be an important ingredient in an intended marriage has been a subject of debate for many years. In 1876, the South African authorities in Travaal expressly prohibited the practice, noting that “in furtherance of morality, the purchase of women or polygamy among Natives is not recognised in this Republic by the law of the land”. This legislation was followed up with a circular to the effect that the “purchase of women” for money or cattle was “contraband dealing” upon which native courts could not adjudicate. The net effect of the legislation and circular was to oust the jurisdiction of courts in South Africa, where natives had either engaged in polygamy or paid bride price
Parts Six and Seven of the Act focus on Hindu and Muslim marriages. The bare minimum for parties desirous of contracting this kind of marriage is that they have to profess the religion. On the face of it, it would seem that both parties have to profess the religion. However, it is trite that Muslim law prohibits marriage between a Muslim woman and any non-Muslim man, and between a Muslim man and any woman who is neither a Muslim nor a “Kitabiya” (i.e. belonging to one of the “peoples of the book” e.g. Christian or Jew). It would be interesting to interrogate the validity of an Islamic marriage conducted between a Muslim man and a Christian woman in light of this reality.
The closest one can get to jurisprudence in this regard is the 1941 case of Fanuel Lemama, which involved a proposed marriage between a Christian Man and a Muslim girl aged 15 years. Whereas, the girl’s mother had given consent for marriage in tandem with the then Marriage Ordinance, the girls uncle had put in a caveat on the grounds that under Muslim law, his consent was required because the girl’s father had died, and further that the girl could not contract a valid marriage with a non-Muslim. Thacker J rejected these arguments noting that Muslim law was inconsistent with the Marriage Ordinance, hence inapplicable.
It is important to note that in light of Section 49(3), which provides that “any provision of this Act which is inconsistent with Islamic law and practices shall not apply to persons who profess the Islamic faith”, would be cited to respond to the Judges finding. Islamic and Hindu marriages must be officiated by persons authorised by the Registrar, and this should be done in accordance with the religious rituals. The person officiating the marriage is expected to record the details of the marriage in a prescribed form and deliver the same to the Registrar.^